LEGAL ISSUES INVOLVED IN TELLING TRUE STORIES

This publication addresses “Legal Issues in Telling True Stories” which includes books, films, and series that might be bio pics, or autobiographical, or based on news stories. These things get made all the time, but often people do not know that there are significant legal issues involved.

QUESTION: If I want to talk about John Kennedy having Marilyn Monroe as a mistress, or talk about what life in my family was like growing up, don’t I have a right to do that? (Rights other people have to privacy, to control the exploitation of their name, to defend against libel, etc.)

Yes. However, it is a balancing between the filmmaker’s or author’s First Amendment Freedom of Speech and the subject’s individual rights. Everyone has the right to not have their reputation defamed. And everyone has a right to privacy – the right to not have your personal matters intruded upon. People also have the right to not have their name or image exploited for commercial profit without their consent. This is known as their right of publicity. The legal issues involved are: (1) Defamation; (2) Right to Privacy; and (3) Right of Publicity.

DEFAMATION

Defamation is the unprivileged publication of a false statement of fact that injures another’s reputation. Defamation is a communication that harms the reputation of another so as to lower him in the opinion of the community or to deter third persons from associating or dealing with him. For example, those communications that expose another to hatred, ridicule or contempt, or reflect unfavorably upon one’s personal morality or integrity are defamatory. One who is defamed may suffer embarrassment and humiliation, as well as economic damages, such as the loss of a job or the ability to earn a living.

There must be a balance of interests between protecting an individual’s personal reputation and the freedom of speech. The elements for the cause of action include: (1) False statement about the plaintiff; (2) Publication of the statement to a third person who understands the meaning of the statement; (3) Fault on the part of the defendant (which may be intentional, reckless, or negligent) in regard to falsity; and (4) Actual or presumed damages suffered by the plaintiff. Because of the fault element, there are significant limitations on the ability of public officials and public figures to win defamation actions because they have obtained the status of a person who can be commented upon in society, the plaintiff must show actual malice.

False Statement of Fact

In order for a statement to be considered defamation, it must be a false statement of fact. There must be a distinction from statements of opinion. Statements that do not consist of facts, but rather are merely the views of the person making the statement, do not qualify as defamation. The First Amendment to the Constitution protects freedom of expression. Statements of opinion are privileged speech and are not actionable as defamation.

Fact vs. Opinion

Whether an alleged defamatory statement is an opinion or an assertion of fact is a question of law to be decided by the Court.

To discern whether a statement is one of fact or opinion, the Courts have established tests. The “Contextual Test,” also referred to as “Totality of the Circumstances Test”, considers the following factors in determining whether an alleged statement is constitutionally privileged: (1) The content and form of the communication taken in its totality; (2) The circumstances surrounding the communication; (3) The ordinary meaning of the words that make up the communication; (4) The likely and reasonably understandable interpretation of the words; and (5) The extent to which the words can be proved false or true by objective evidence.

INVASION OF PRIVACY

The right of privacy is based on an individual’s reasonable expectation to be left alone. The right of privacy is not absolute. Again, there is a balance with the First Amendment Freedom of Speech. Newsworthy events and statements are not protected by privacy unless they are disseminated with actual malice. A matter is considered “newsworthy” if it is a legitimate concern to the general public. In addition, injury to an individual’s reputation is not required to pursue a claim for invasion of privacy. Also, truth is not a defense to invasion of privacy. True statements may be the basis for invading a person’s privacy. Likewise, matters of public record are not considered private. If a person voluntarily reveals private facts to others, they are no longer considered private and the individual has consented to its dissemination.

There are specific legal causes of action for the violation of an individual’s right of privacy. These include: (1) Public Disclosure of Private Facts; (2) Intrusion into Seclusion and Private Matters; (3) Misappropriation of Person’s Name or Likeness; and (4) Portraying a Person in a False Light.

(1) Public Disclosure of Private Facts

In order to recover for a cause of action of public disclosure of private facts, the matters revealed to the public must be highly offensive to the reasonable person and the matter must not be newsworthy.

(2) Intrusion into Seclusion

In order to recover for a cause of action of intrusion into a person’s seclusion, solitude, or private affairs, the matters revealed must be obtained through an unwarranted means, such as nonconsensual videotaping or recording. There are two required elements: (1) An intrusion into a private place, conversation, or matter, and (2) Which is done in a manner highly offensive to a reasonable person. There must be an objectively reasonable expectation of seclusion or solitude in the invaded place or conversation.

(3) Misappropriation of Name or Likeness

A cause of action for misappropriation of an individual’s name, voice, photograph, or likeness is similar to a violation of an individual’s right of publicity. Misappropriation compensates the individual for the emotional distress suffered when someone uses your name or likeness for publicity without consent. The right of publicity compensates the individual for the commercial value in exploiting their name or likeness, and is generally maintained by celebrities who perform publicly for a living. Again, this cause of action is balanced against the First Amendment Freedom of Speech. If an individual is involved in a newsworthy event, the person cannot recover for misappropriation.

The right of privacy ordinarily does not survive a person’s death. However, pursuant to the California Civil Code a statutory cause of action is available for the misappropriation of a deceased celebrity’s image.

(4) False Light

The cause of action for portraying a person in a false light to the public is similar to defamation. However, the plaintiff does not need to prove harm to his or her reputation. Rather, all that is needed to show is the portrayal is highly offensive to the reasonable person, and may expose the person to hatred, contempt, or ridicule in the public eye.

For an unflattering fictionalized story based on an individual, there must be great care in not portraying that person in a false light. Since the story is fiction, it is known to the creator that the statements are not true and a Court may consider the story to be published with actual malice.

Moreover, photographs are not actionable if they are fair and accurate depictions of the person, even if they are unflattering.

THE RIGHT OF PUBLICITY

The right of publicity is the right of an individual to commercially profit from their own name or likeness. The nonconsensual use of another’s name or likeness for commercial gain is prohibited. However, the right of publicity is generally only limited to celebrities who earn significant fees from performing publicly or by endorsing products.

There must be a balance with the First Amendment Freedom of Speech. A celebrity by virtue of their notoriety in the public is newsworthy and can be commented upon. Newspapers, magazines, books, movies, plays are expressions of speech protected by the First Amendment. By placing a celebrity’s image on such a product, there must be a balancing of the First Amendment against publicity rights. The nonconsensual use of a celebrity’s image may be used based on Freedom of Speech. When balancing rights, the First Amendment is generally paramount but not absolute. The seller of the product must be making a statement or expressing an opinion about the celebrity – there must be commentary, rather than solely exploiting the name and likeness of the celebrity. In such a situation, there is no competing First Amendment concerns, and the right of publicity will prevent the unauthorized use of the celebrity’s likeness.

California Civil Code section 990 provides that the right of publicity survives the death of a celebrity for products, merchandise and goods, but does not survive for books, plays, television and movies. The heirs of the celebrity can enforce the right of publicity for up to 70 years after death.

QUESTION: So other people have rights that have to be protected, but people do tell these stories all the time. Sometimes the stories say Person X killed Person Y, or Person A had an affair with Person B that destroyed a family. How do these people get away with doing these really non-complimentary stories? (Matters of public record, purchasing life rights, etc.)

MATTERS OF PUBLIC RECORD

There is no invasion of the plaintiff’s right of privacy if the disclosure concerns matters about him or her that are of public record and open to public inspection. There is no liability when the defendant merely gives further publicity to information about the plaintiff which is already public or when the further publicity relates to matters which the plaintiff leaves open to the public eye.

THE ABSOLUTE DEFENSE OF TRUTH

Truth is an absolute defense to an allegation of defamation, even if the statement was published with the intention of bad faith, malice, or ill will. Truth is an absolute privilege. If the statement is true, it does not qualify as defamation. However, in some circumstances, the burden to prove truth rests with the person publishing the allegedly defamatory statement.

FIRST AMENDMENT FREE SPEECH FAIR COMMENT

The right to comment and criticize is considered Free Speech. However, the privilege to comment upon another is not absolute. The statement must be about a newsworthy person or event and cannot be made with bad faith or abuse. Public figures, celebrities, and public officials have a higher burden in order to prevail in a defamation action in that they must prove not only is the statement false but that the statement was also made with “actual malice.” Actual malice means that the person publishing the statement intentionally defamed another or acted with reckless disregard for the truth. Negligence on the part of the person making the statement is not enough to create liability when the subject is a public figure.

PURCHASING LIFE RIGHTS

When purchasing the rights to make a story about another’s life, it is actually a waiver from the party who may assert claims against you. For instance, you will want to be protected against lawsuits for potential defamation, invasion of privacy, and violation of the individual’s right of publicity. In the life story rights agreement, you may also negotiate the ability to consult with the individual’s family members or heirs and have access to information in their possession.

However, if the subject of a life story is deceased, the need for a waiver of claims is less significant since the causes of action for defamation and invasion of privacy do not survive the death of the individual. However, the right of publicity may or may not descend to individual’s heirs, depending on the particular state law that will have jurisdiction over the matter.

In addition, public figures must meet the higher burden of proof to establish defamation or invasion of privacy. They must prove that the person making the statement acted with actual malice – that is, intent and knowledge of its falsity or reckless disregard of the truth.

Terms of the Life Story Rights Agreement

(1) Extent of the Rights:

Whether the agreement will include creating remakes, sequels, television series, merchandising, novelization, live-stage rights and radio rights; whether the story is limited to only a particular time period of the individual’s life; and whether the rights worldwide or limited in geography. Typically, the buyer of the rights will want as broad a grant as possible, whereas the seller may insist on retaining or limiting certain rights.

(2) Releases of Third Parties:

If other individuals are also portrayed in the project, those parties will need to release potential claims as well. These parties may include the subject’s spouse, children, friends and relatives. Many times, these “secondary characters” may have to be fictionalized if releases cannot be obtained.

(3) Assignment of Rights:

If the buyer of the life story will need to obtain financing, the rights may need to be assigned to a studio, a production company, or a network as part of a financing/distribution agreement.

(4) Option/Purchase:

The life story agreement may be an option/purchase deal or an outright sale, oftentimes with a reversion clause included. A reversion clause means that if the rights are not exploited and the film is not made within a certain number of years, then all rights would revert back to the subject so that he can resell the right to make his or her life story to another producer.

(5) Consideration:

A required element for any contract agreement is the reciprocal bargained for exchange which is known as consideration. This is usually an amount of money, but it can also be anything of value including mutual promises. Courts of law will not make judgement on value so long as it is more than a mere sham. To satisfy the consideration requirement and to establish an exchange of value, contracts usually recite provisions such as “For one dollar and other valuable consideration…” The amount of consideration must actually be paid and have supporting evidence such as a copy of the check for proof of payment. Compensation to the individual for their life story rights may include a flat fee amount, percentage of the projects net profits, additional consulting fees, and other types of negotiated bonuses to be paid as the film is exploited in different markets.

(6) Warranties:

Certain promises must be made in the life story agreement. These are known as the warranties. The seller of the life story must warrant to the buyer that they will not sue for violation of their right of publicity, invasion of privacy, or defamation.

(7) Creative Rights:

The buyer of the life story must have the ability to embellish, fictionalize, dramatize, and adapt the story. This is important so that the filmmaker can attract the audience with an interesting story. Many times the individual granting the life story rights may insist on script approval, however the producer will never agree to granting final approval of the script. Rather, the individual may be allowed to have approval over the treatment or in selecting the writer of the script. The producer may also allow the individual to serve as a creative consultant to the project, even so the director will not be required to accept the individual’s suggestions. In addition, the time period portrayed of the individual’s life can be strictly limited. The individual may also have the ability to determine if the actual names of characters are used and what the screen notice attached to the project will be, such as whether the film will be billed as a “True Story” or a “Dramatization.”

QUESTION: If I want to tell a true story, what should I do first, second, third…. (Consult with an experienced entertainment Attorney before you write the story if you are the writer and before you produce the project if they are a producer. Errors and Omissions Insurance will be needed in order to distribute a biopic/based on a true story. Without that protection, oftentimes distributors will not get involved with the project.)

Steps you can take to avoid liability from subjects portrayed in your script or film, include:

(1) Obtain Releases:

Even if it may not be legally required, it is best to obtain a release from anyone or anything portrayed in the story including family members, third parties, locations, etc. The key is to create a paper trail to cover your project.

(2) Depiction Releases:

Written releases are required from all persons who are recognizable or whose name, image or likeness is used, especially for private individuals who are not public figures and are still alive. Moreover, if such a person is a minor, the release should be binding which may require Court approval. If a subject is deceased, a release usually is not needed but may be required in some circumstances. Releases are not needed if the recognizable person is part of a crowd or background shot and is not shown for more than a few seconds or given special emphasis. Nonetheless, it is best to obtain as many releases as possible.

(3) Content of the Release:

A sufficient release should: (a) Give the right to edit and modify material; (b) Give the right to fictionalize the people portrayed; and (c) Give the right to market production in all media and markets.

(4) Consider Fictionalization:

If proper releases cannot be obtained, consider changing the identity, names, and location of the people and places portrayed so that they are not identifiable to any living person by the general public.

(5) Include a Disclaimer:

Add an express disclaimer stating that the characters are fictional and any resemblance to any individual is by coincidence.

(6) Maintain Script Annotations and Evidence of Sources:

Maintain all evidence to prove that any alleged defamatory statements are in fact true and to defend against any allegations of invasion of privacy. The script must be annotated by identifying the sources of the information contained in the project. The elements that should be annotated include characters, events, settings, and dialogue. The annotations are typically included in the margins of the script or in footnotes and endnotes. Annotations of characters include: (a) whether the character is real, fictionalized, or a composite; (b) whether the actual person is living or deceased; and (c) for composite characters, what is the actual name of the person and what characteristics the character is based. Annotations of scenes include: Whether the scene is based on fact, inference from actual facts; What is the source of the information, including books (stating the book’s title, author, publisher, and pages), newspaper or magazine articles (stating the title, author, publisher, and page), internet sites (stating the author, title, and web address, and date work first appeared if possible), radio or television interviews (stating date of broadcast, station, name of interviewer, and the program name), other interviews stating the name of the interviewee, if notes or recordings exist, transcript page number), deposition or Court transcripts (stating the Court and case number, date, the name of the deponent, and transcript page)

(7) Script Clearance:

An Attorney may be required to provide an opinion as to any potential liability before the script goes into production. Many insurance carriers will require an Attorney’s opinion before offering an insurance policy to cover the work.

(8) Errors and Omissions Insurance:

The production company must obtain an Errors and Omissions (E & O) Insurance policy. All potentially liable parties should be named as additional insureds in the policy.

QUESTION: Let’s say I have decided that I want to fictionalize my piece, or say it is fiction, can I do that? So my story is about Monroe and Kennedy, but I give them different names. Or I change the story I tell about my family. Am I “safe” then? (Recognizable characters)

FICTIONAL CHARACTERS

In order to avoid liability or if releases cannot be obtained, the author or filmmaker should consider fictionalizing a true story by changing the names of individuals, the locations, and other characteristics so that the real-life people and places are not recognizable to the public. However, audience attraction may be put at risk because the fictional story will lose the appeal of a true story.

An author or filmmaker may use fictional characters in their works. The author is under no duty to address the possibility that someone may identify with the fictional characters. However, a disclaimer in a fictional work is a relevant factor in determining the defamatory nature of the work. But the disclaimer is not a dispositive factor, and the work may still be considered defamatory if other factors are present. A disclaimer should state that any resemblance of the fictional characters to actual persons is purely accidental.

When a person attempts to show the similarities and resemblance of the supposedly fictional character, the test is whether the third party recipient could reasonably believe that the character is a portrayal of the plaintiff. The jury will be required to make a comparison between the plaintiff’s characteristics and that of the fictionalized character.

Moreover, celebrities, public figures, and certain events can be fairly commented upon if they are considered newsworthy. Public figures also have a higher standard to meet in establishing defamation and invasion of privacy.

In addition, if the fictional character is drawn from another literary work, you may be infringing that author’s copyright. Exceptions would include if the literary work is considered public domain or if the doctrine of fair use is applicable. If you use the name of a character from another literary work, you may be liable for trademark infringement or unfair competition.

EXPERIENCED ENTERTAINMENT ATTORNEY

The Sterling Firm’s Entertainment Law practice represents clients in all areas of the entertainment industry including film, television, music, stage, and publishing. If you have any legal issues involved in the entertainment industries, contact The Sterling Firm at (310) 498-2750 or email Info@TheSterlingFirm.com to speak with an experienced Entertainment Attorney.